Thompson v. Potomac Electric ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE F. THOMPSON, 
Plaintiff-Appellant,
v.  No. 01-2097
POTOMAC ELECTRIC POWER COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge;
Walter E. Black, Jr., Senior District Judge.
(CA-99-3260-B)
Argued: September 24, 2002
Decided: December 12, 2002
Before LUTTIG and TRAXLER, Circuit Judges, and
Norman K. MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Luttig and Judge Moon joined.
COUNSEL
ARGUED: Joe Carl Ashworth, Leonardtown, Maryland, for Appel-
lant. William Patrick Flanagan, HOGAN & HARTSON, L.L.P.,
McLean, Virginia, for Appellee. ON BRIEF: Dean A. Romhilt,
HOGAN & HARTSON, L.L.P., Washington, D.C., for Appellee.
2 THOMPSON v. POTOMAC ELECTRIC POWER CO.
OPINION
TRAXLER, Circuit Judge:
George F. Thompson appeals a grant of summary judgment in
favor of his former employer, Potomac Electric Power Company
("PEPCO"), on his employment discrimination claims under Title VII
and Section 1981. See 42 U.S.C.A. §§ 2000e-2(a), 2000e-3(a) (West
1994); 42 U.S.C.A. § 1981 (West 1994). Thompson alleges that
PEPCO unlawfully denied him certain training opportunities because
of his race and retaliated against him for complaining about PEPCO’s
allegedly discriminatory conduct. For the reasons set forth below, we
affirm.
I.
Thompson, who is African-American, joined PEPCO in 1977 and
worked for twenty-three years at the Morgantown Generating Station
("Morgantown") in Newburg, Maryland. During his career at PEPCO,
Thompson successfully completed more than eighty training courses,
thirty-two of them between 1996 and 1998. He started at the lowest
position in his job classification, Power Plant Operator ("PPO")
Helper, but steadily advanced through the ranks and was promoted to
the highest PPO classification, "A" Operator, in 1994. As an "A"
Operator, Thompson worked chiefly in Morgantown’s nerve center,
the Control Room, operating equipment. During the relevant period,
Thompson’s immediate supervisor was Robert Chase, a Senior Power
Plant Operator ("SPPO") who is also African-American. Chase, in
turn, reported to Shift Supervisor Clifford Fluharty, and Fluharty
reported to William Hutchins, the General Supervisor of Plant Opera-
tions. Both Fluharty and Hutchins are white.
In 1996 and 1997, PEPCO had an unwritten practice of allowing
PPOs, like Thompson, to upgrade to SPPO positions on a temporary
basis in order to provide cover in the Control Room. Individuals who
were temporarily upgraded to SPPO performed chiefly technical
duties, but they also directed the work of Control Room operators and
thus acquired a modest degree of supervisory experience. They did
not, however, perform such supervisory functions as conducting per-
formance appraisals, recommending discipline, or reviewing leave
THOMPSON v. POTOMAC ELECTRIC POWER CO. 3
requests. The duration of upgrades varied and lasted up to one year.
Thompson was temporarily upgraded to the SPPO position on one
occasion for approximately forty minutes. Two white employees,
John Norris and Lester Combs, were upgraded to SPPO positions for
lengthier intervals. Norris was also an "A" Operator, but had fewer
years of company service than Thompson, and Combs held the lower
rated position of "B" Operator. Two other white employees, William
Pilkerton and Kim Morris, both "A" Operators senior to Thompson,
were never upgraded at all.
Although he never sought additional opportunities for the tempo-
rary upgrades, Thompson "thought someone would look at [his]
achievements and say, well, let’s give [him] a chance." J.A. 44. When
specifically approached by Fluharty and asked whether he would like
to be upgraded, Thompson responded that he would "try it" so long
as he was provided training and the support of a supervisor. J.A. 44.
Thompson was encouraged to work alongside Chase in the Control
Room, but according to Chase, Thompson did not take advantage of
the opportunity.
Thompson applied for a permanent SPPO position in 1997 and
1998. As part of the application process, PEPCO required applicants
to complete a First Line Supervisory Assessment Center (the "Assess-
ment Center"), a test comprising six simulation exercises designed to
measure the applicant’s abilities in various supervisory areas, includ-
ing communication, problem-solving, judgment, leadership, and inter-
personal relations. The simulation exercises were not, however, based
on power plant operations. When Thompson participated in the
Assessment Center, he was presented with scenarios out of a retail
setting. Applicants participating in the Assessment Center received
scores ranging from "Best" to "Needs Improvement," with those
applicants scoring higher than "Needs Improvement" proceeding to
the interview stage. Both times Thompson participated in the Assess-
ment Center he received an overall score of "Needs Improvement."
Consequently, Thompson was not selected for either SPPO position.
Five other applicants, who had never held supervisory positions or
temporary upgrades, scored in the "Acceptable" or "Good" range and
proceeded to the next stage.
In 1998, PEPCO underwent a restructuring that included the reclas-
sification of certain positions. As a result, only five of the eight "A"
4 THOMPSON v. POTOMAC ELECTRIC POWER CO.
Operators at Morgantown, selected by seniority, were permitted to
continue working primarily in the Control Room and were reclassi-
fied as "Control Room Operators." Thompson, who was seventh in
seniority, was one of three remaining "A" Operations reclassified as
a "Plant Technician" and thereafter worked primarily outside the Con-
trol Room. The SPPO position was also reclassified as the "Control
Room Supervisor." After the restructuring, Senior Plant Technicians
were still permitted to upgrade temporarily to the Control Room
Supervisor position. Thompson was again not selected for temporary
upgrade; however, two less senior Power Plant Technicians, Ann
Shade and Mary Joseph, both African-American, were selected. In
June 2000, Thompson was promoted from Plant Technician to "Se-
nior Plant Technician."
According to Thompson, he was not selected for temporary
upgrade in retaliation for discrimination complaints he had filed.
Thompson first filed an internal complaint of discrimination in
December 1996 because he believed that Fluharty had denied him
overtime and promotional opportunities because of his race. Thomp-
son also complained after Fluharty called for a disciplinary discussion
in June 1997, because Thompson had allegedly raised his voice and
pointed his finger at Fluharty in the presence of other employees.
Thompson filed another internal discrimination complaint after he
was placed on a day of decision-making leave in November 1997 for
leaving his watch without authorization. In both instances, Thompson
felt that he was treated more harshly than white employees who had
committed similar infractions. However, as a result of these disciplin-
ary measures, Thompson lost no pay and maintained the same posi-
tion. Both incidents were later expunged from his record.
Thompson filed another internal discrimination complaint after
receiving his performance evaluation for the period July 1, 1996 to
June 30, 1997 (the "1997 evaluation"). For this period, Thompson
received a score of one, which corresponded to "Needs Improve-
ment," for the categories "Communicate with Others" and "Work as
a Team Member." According to Thompson, his 1997 evaluation
marks were lower than those that he had received in the past and were
attributable to Fluharty, who oversaw his review and was looking to
retaliate for Thompson’s complaints. Thompson’s overall score for
the 1997 evaluation, however, remained "Fully Acceptable" under
THOMPSON v. POTOMAC ELECTRIC POWER CO. 5
PEPCO’s performance evaluation standards. In the subsequent two
evaluation cycles, when Fluharty was no longer in charge of his
review, Thompson’s scores improved.
Thompson also complained that he had received threats from co-
workers subsequent to filing his first internal discrimination com-
plaint. Specifically, in November 1997, Thompson reported that his
name, a box, and the letter "D" had been carved into a workbench
near his locker. Thompson asserted that the box represented a coffin
and the letter "D" stood for death. PEPCO and local authorities inves-
tigated the allegation, but found no evidence to substantiate his claim.
Later, in the summer of 2000, a co-worker, Steve Dowart, said,
"you’ve got to go, we’re going to get rid of you, we’re going to try
to do everything we can to get you fired." J.A. 67-68. Thompson told
his supervisor and an EEO coordinator about the incident, but did not
file a complaint or otherwise pursue the matter.
On June 25, 1999, Thompson filed a charge of discrimination with
the Equal Employment Opportunity Commission ("EEOC"). After
receiving a right to sue letter from the EEOC, Thompson filed a com-
plaint in the district court. He asserted that PEPCO denied him train-
ing opportunities and retaliated against him in violation of Title VII
and Section 1981. The court granted summary judgment to PEPCO,
finding that there were no factual issues warranting a trial. Thompson
then filed this appeal.
II.
This court reviews de novo a district court’s award of summary
judgment, viewing the facts and inferences drawn therefrom in the
light most favorable to the party opposing the motion. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Lone Star Steak-
house & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 928 (4th Cir.
1995). As the non-moving party below, Thompson had the ultimate
burden of demonstrating a genuine issue of material fact for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Conclusory or
speculative allegations do not suffice, nor does a "mere scintilla of
evidence" in support of his case. Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999) (per curiam) (internal quotation marks
omitted).
6 THOMPSON v. POTOMAC ELECTRIC POWER CO.
A. Denial-of-Training Claim
We address first Thompson’s contention that the district court
should not have granted PEPCO summary judgment on his denial-of
training claim. Because Thompson presented no direct evidence of
discriminatory denial of training based on race, he was obliged to pro-
ceed under the McDonnell Douglas proof scheme, under which he
carried the initial burden of establishing a prima facie case of discrim-
ination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954,
959 (4th Cir. 1996).1
To establish a prima facie case of discriminatory denial of training,
a plaintiff must show that: (1) the plaintiff is a member of a protected
class; (2) the defendant provided training to its employees; (3) the
plaintiff was eligible for the training; and (4) the plaintiff was not pro-
vided training under circumstances giving rise to an inference of dis-
crimination. See Pafford v. Herman, 148 F.3d 658, 667 (7th Cir.
1998).
When we view the evidence in light of this standard, it is immedi-
ately obvious that Thompson has presented no evidence of a denial
of training giving rise to an inference that he has suffered discrimina-
tion. As the district court noted, Thompson received extensive train-
ing during his career at PEPCO, including the period at issue during
which he attended some thirty-two courses. We also agree that the
temporary upgrades to SPPO were not undertaken as training exer-
cises, but were primarily to provide coverage for absent Control
Room operators. Even if we were to treat the temporary upgrades to
SPPO as de facto training exercises, Thompson was not denied train-
ing under circumstances giving rise to an inference of discrimination,
because there is no evidence that similarly situated employees were
selected for upgrades on the basis of race. See Pafford, 148 F.3d at
667.
1
As an initial matter, we note that the elements required to establish a
prima facie case are the same under Title VII and Section 1981; there-
fore, the district court properly considered these claims together. See
Gairola v. Virginia Dep’t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir.
1985).
THOMPSON v. POTOMAC ELECTRIC POWER CO. 7
Thompson contends that the upgrade opportunities afforded to Nor-
ris, who was two years his junior in service, and Combs, a "B" Opera-
tor, demonstrate that PEPCO did not upgrade him because of his race.
However, as the district court properly observed, two other white "A"
Operators, Pilkerton and Morris, both senior to Thompson, were
denied the opportunity to upgrade altogether. Thompson’s argument
that Pilkerton and Morris should not be considered because they did
not seek temporary upgrades is unavailing because there is no evi-
dence Thompson himself sought upgrades during the relevant period
either. The record also indicates that PEPCO did upgrade other simi-
larly situated African-American employees. In particular, after
PEPCO reorganized in 1998, two other African-American Power
Plant Technicians, Shade and Joseph, were temporarily upgraded to
the Control Room Supervisor (formerly the SPPO) position. Shade
and Joseph were both junior to Thompson. Because the practice of
temporary upgrades remained in effect before and after the reorgani-
zation and reclassification of positions, Thompson’s argument that
only the upgrades afforded to operators prior to the 1998 reorganiza-
tion should be considered is unavailing.
Consequently, Thompson has failed to demonstrate that PEPCO
did not provide him with training under circumstances giving rise to
an inference of discrimination. Thus, the district court properly
granted summary judgment with respect to Thompson’s denial-of-
training claim.
B. Retaliation Claim
Thompson also contends that the district court erred in granting
PEPCO summary judgment on his retaliation claim. He asserts that
PEPCO unlawfully denied him training opportunities, disciplined
him, and gave him a lower performance appraisal in retaliation for fil-
ing several internal discrimination complaints. Thompson’s retaliation
claim is also evaluated under the McDonnell Douglas framework. See
Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir.
1998).
To establish a prima facie case of retaliation, Thompson was
obliged to show that "(1) [he] engaged in a protected activity; (2)
[PEPCO] took an adverse employment action against [him]; and (3)
8 THOMPSON v. POTOMAC ELECTRIC POWER CO.
a causal connection existed between the protected activity and the
asserted adverse action." Von Gunten v. Maryland, 243 F.3d 858, 863
(4th Cir. 2001). It is undisputed that Thompson engaged in protected
activity when he filed his internal discrimination complaints. With
respect to the second element, this circuit has held that an adverse
employment action includes any retaliatory act "if, but only if" that
act adversely affected the "terms, conditions, or benefits" of his
employment. Von Gunten, 243 F.3d at 866 (internal quotation marks
omitted). Here, the alleged adverse employment actions were the
denial of training opportunities, certain disciplinary actions taken
against Thompson, and the 1997 evaluation of Thompson’s perfor-
mance. We consider each in turn.2
Thompson argues that the denial of temporary upgrades to SPPO
constituted denial of training opportunities which hurt his perfor-
mance on the Assessment Center evaluations, thereby affecting his
ability to be promoted to a permanent SPPO or Control Room Super-
visor position. The district court rightly described this argument as
"sheer speculation." J.A. 352. As noted previously, the primary role
of a temporarily upgraded PPO was to make technical decisions and
not to perform traditional supervisory functions. Moreover, temporary
upgrade experience did not affect performance at the Assessment
Center because the Center judged a participant’s abilities in perform-
ing general supervisory functions — as witnessed by the role-playing
scenarios drawn from the retail, rather than a Control Room, context.
Five candidates who scored better than Thompson at the Assessment
Center in 1997 and 1998 had never been upgraded or served in any
supervisory capacity. Thus, there is no evidence in the record that
suggests that upgrades bore any impact on Assessment Center perfor-
mance.
2
Thompson also claimed that he endured threats from his co-workers.
The court below accepted the statement of Thompson’s counsel that the
threats were not being presented as acts of retaliation, but as evidence of
the surrounding circumstances. Inasmuch as Thompson did not rely on
these threats in support of his claims or assert a hostile work environment
claim below, we do not consider them on appeal. See Karpel v. Inova
Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (holding that
employee’s failure to raise Title VII hostile work environment claim in
district court prevented consideration of claim on appeal).
THOMPSON v. POTOMAC ELECTRIC POWER CO. 9
Even if the denial of temporary upgrades could be considered an
adverse employment action, Thompson failed to satisfy the causation
element of his prima facie case by showing that the adverse employ-
ment action took place after the filing of the discrimination claim. See
Inova, 134 F.3d at 1229. Thompson asserts that he was denied
upgrading opportunities throughout 1996, yet he did not file his first
internal discrimination complaint until December of that year. The
district court rightly found that the continuation of the alleged adverse
action after the filing of a discrimination complaint did not, without
more, support Thompson’s prima facie burden of showing causation.
Thompson’s second allegation of adverse employment action
inheres in two incidents: the June 1997 disciplinary discussion
prompted because Thompson had allegedly raised his voice and
pointed his finger at Fluharty in the Control Room and the November
1997 day of decision-making leave imposed on Thompson for leaving
his watch without authorization or relief by a co-worker. In both
instances, Thompson felt that he was treated more harshly than white
co-workers who had committed similar offenses. PEPCO answered
this claim by arguing that neither of these incidents constituted an
adverse employment action under Von Gunten. We agree. Thompson
lost no pay and maintained the same position in the wake of these
disciplinary actions, both of which were later expunged from his
record. Because Thompson has not demonstrated that any of
PEPCO’s disciplinary procedures affected the terms, conditions, or
benefits of his employment, the district court properly held that he did
not establish a prima facie case.
Thompson’s remaining adverse action allegation relates to his 1997
evaluation. Although Thompson argues that his appraisal was lower
for this period than previous reviews and attributes this to Fluharty’s
enmity after the filing of discrimination claims, the record indicates
that Thompson’s overall score for the period, though diminished from
earlier evaluations, remained within the "Fully Acceptable" PEPCO
rating. The district court correctly noted that the 1997 evaluation
therefore did not constitute adverse employment action. See Von Gun-
ten, 243 F.3d at 867; see also Spears v. Missouri Dept. of Corr. &
Human Res., 210 F.3d 850, 854 (8th Cir. 2000) ("A poor performance
rating does not in itself constitute an adverse employment action
10 THOMPSON v. POTOMAC ELECTRIC POWER CO.
because it has no tangible effect upon the recipient’s employment
. . . [and] is actionable only where the employer subsequently uses the
evaluation as a basis to detrimentally alter the terms or conditions of
the recipient’s employment.") (citation omitted). Because Thompson
did not adduce evidence that the appraisal affected the terms, condi-
tions, or benefits of his employment, the court correctly granted
PEPCO’s motion with respect to Thompson’s retaliation claim relat-
ing to the 1997 evaluation.
III.
For the reasons set forth above, we affirm the district court’s deci-
sion granting summary judgment to PEPCO on Thompson’s Title VII
and Section 1981 claims.
AFFIRMED